Damien Bourke

Partner - Brisbane

Areas of Expertise

Expertise

Damien has over 20 years’ experience dealing with complex tax litigation and for the past 10 years has been exclusively involved in litigating with the various Revenue authorities. Damien was named as a leading tax lawyer in 2017 and 2018 editions of Doyle's Guide.

Damien has particular expertise in tax disputes and is based in the Firm’s Brisbane office. A former partner at Ernst and Young law he led the firm's Queensland tax disputes practice. He advises on all aspects of Australian and State revenue disputes as well as complex cross border tax investigations, tax litigation, management of raids by revenue authorities and strategic discussions with tax authorities. More recently Damien has practiced in his own specialised tax disputes and litigation firm.

He is recognised as one of the leading tax advisors and prior to joining with Holding Redlich the firm (Bourke Legal) was recommended by Doyle’s guide as one of the leading tax litigation firms.

He has recently been involved in successful payroll tax litigation against the Queensland revenue authorities. He is a leading authority on trusts and has had considerable success in both the Federal and High court in this area.

Damien is a qualified solicitor and advocate and is a member of the Tax Institute. He is a member of the Queensland Law Society Revenue Committee (which advises the Society on all aspects of State Revenue taxes including stamp duty and payroll) as well as being on the Law Council’s Business Tax law committee – which advises the national body on all aspects of Federal Tax law.

His focus over more recent times has been around negotiated settlements of Tax disputes and particular strategies which bring the ATO to the settlement table at an early stage of proceedings. He has been the principal negotiator in both income tax and GST as well as legal professional privilege disputes for both Small to Medium Enterprises as well as for larger listed corporations.

He has advised on a large range of tax and trust law issues; including the abuse of administrative powers and their review by the Federal Court – a jurisdiction where he has also appeared for taxpayers in both Part IVC disputes and other administrative controversies. He has advised in malicious prosecution proceedings as well as misfeasance in public office by taxation officers (which he also prosecuted).

His current work focus is:

the provision of (“front end”) legal advice to corporations on the management of tax risk reviews and the handling of disputes with the ATO

the settlement of disputes with the ATO through tax risk management strategies – principally for clients of large Accounting firms, as well as other mid-tier accounting firms

the preparation of a claim against Innovation and Science Australia contesting the disallowance of registration of “R&D activities” under the Industry Research and Development Act 1986

advising on part IVA and an asserted reimbursement agreement under s100A

proceedings in the Supreme Court of Queensland under the Payroll Tax Act (‘grouping’ and ‘subcontractor’ provisions)

claimed ‘Fraud/Evasion’ – High Court Special leave application.

Experience

Damien's experience includes the following:

Tao Bai v Commissioner of Taxation

HIGH COURT SPECIAL LEAVE APPLICATION – Fraud/Evasion – Commissioners ability to extend time without providing adequate reasons or any proper foundation.

Can Barz and anor v Commissioner of State Revenue [2016] QSC 059

PAYROLL TAXES – GARNISHEES OF TRUSTEES OF SUPERANNUATION FUND – a successful Application to set aside an attempt made by the Commissioner to intercept funds on the sale of an asset by a SMSF.

Currently the subject of an Appeal by the Commissioner of State Revenue.

Bird and Scott as trustees of the Mewcastle Superannuation Fund v Commissioner of State Revenue [2016] QSC

PAYROLL TAX GROUPING PROVISIONS – In aligned proceedings with the Garnishee application, the Mewcastle SMSF trustees sought exclusion from a wider group – on various grounds including that the SMSF was not an ‘employer’ and had never carried on a business. The Supreme Court considered the statutory definitions and the regime as intended by the Legislature. The Court considered that it was bound to apply traditional Judicial Review grounds.

Bridgehampton Pty Ltd v Commissioner of State Revenue [2016]

PAYROLL TAX AND SUBCONTRACTORS – Following a ‘Decision’ made by the Commissioner to slavishly adhere to an internal practice statement aligning the Queensland position with that in NSW/Victoria – an appeal was filed (and is currently before the Supreme Court) to contest the constitutional validity of particular provisions of the Payroll Tax Act 2008 (Qld).

Commissioner of Taxation v Donoghue (2015) 237 FCR 316

LEGAL PROFESSIONAL PRIVILEGE AND DOCUMENTS ACCESS BY THE COMMISSIONER TO RAISE ASSESSMENTS – An appeal by the Commissioner to the Full Federal Court against the decision of Logan J. striking down assessments issued on the basis of tainted documents which were obtained by the ATO from a former disgruntled solicitor.

In 2011, documents were provided to the Commissioner by a disgruntled former solicitor who had acted for the taxpayer in earlier proceedings. Orders were sought that the assessments be set aside on the basis of mal-administration – i.e. the documents were knowingly used by the Commissioner despite the possibility of attracting legal professional privilege.

The decision of the primary judge was reversed on appeal and an application for Special Leave to the High Court was unsuccessful (2016 HCASL 131).

Clark v Commissioner of Taxation [2010] FCA 415

INDEMNITY COSTS under Order 23 found to apply equally to the Commissioner of Taxation as it does to other litigants in the Federal Court. The Federal court (and later the Full Federal Court) ordered that the costs of Mr Clark be paid to him on a full indemnity basis.

Clark v Commissioner of Taxation [2009] FCA 1401

TRUSTS – Creation of a new-trust – acquisition of trust with capital losses and subsequent absorption of capital losses (prior to implementation of the trust loss provisions) – onus of proof – sufficiency of evidence establishing losses. (Presently awaiting appeal decision being handed down by Full Federal Court).

Clark v Commissioner of Taxation [2011] FCAFC 5

TRUSTS – THE Commissioner appealed the decision at first instance to the Full Federal Court. We successfully defended the decision of the judge in the Federal court and the appeal of the Commissioner was dismissed.

Commissioner of Taxation v Clark

HIGH COURT SPECIAL LEAVE APPLICATION – Following the loss before the Full Federal court the ATO requested leave to appeal that decision to the High Court of Australia. That leave was refused.

Dowling v Commissioner of Taxation, [2014] FCA 252

SUPERANNUATION – EXCESS CONTRIBUTIONS TAX. Whether the taxpayer ought to be subject to tax on the excess contributions paid following receipt of incorrect advice from accountants and bank.

Kelly v Commissioner of Taxation [2012] FCA 423

ASSIGNMENT OF INTEREST IN PARTNERSHIP – the appellant (a solicitor in a law firm) made two assignments of his partnership interest to separate trusts. He successfully argued that the second assignment was effective and that his income was effectively diverted to his family discretionary trust.

Kelly v Commissioner of Taxation [2013] FCAFC 88

ASSIGNMENT OF PARTNERSHIP INTEREST – An (unsuccessful) appeal by Mr Kelly against the trial judge’s refusal to find that the first assignment of the partnership interest was effective.

Publications

Recent reports in the Australian Financial Review say that the Australian Taxation Office (ATO) has been contacting private clients of Credit Suisse in regards to what it considers suspicious transactions and secret overseas accounts.